The Media's Imaginary Gay Marriage Ban

In their analysis of Thursday's federal district court ruling on DOMA, the media forgot one important detail: there is no federal ban on gay marriage.

Quality reporting on judicial decisions is hard to come by.  The coupling of deadline pressures and a liberal inclination to view the courts as little more than an alternative, and possibly superior, policymaking body leads to dreadful analyses of decisions.  The headline in Roll Call on Thursday's decision by the U.S. District Court for the District of Massachusetts on the Defense of Marriage Act represents a new low.

The story declares "District Court Finds Federal Gay Marriage Ban Unconstitutional."  You heard that right.  Gay marriage is perfectly legal in Massachusetts.  Has been for some time now.  But apparently, a federal judge in Massachusetts ruled against a federal law that banned gay marriage.  The existence of this federal law must be news to the governor of the Bay State who allowed these marriages to take place under the state's laws.  It also must have been news to the people of California.  Why bother with a cumbersome referendum process to overturn the judicial opinion commanding gay marriage?  After all, the practice was apparently already banned by federal law.

Let's try this one more time.

There is no federal ban on gay marriage.  Any state can legalize the practice.  Some have.  Others are in the process of doing so.  Many more have used the legislative, amendment and referendum process to reaffirm traditional marriage laws.  And all of this is legal under federal law.

The Defense of Marriage Act, found unconstitutional by the federal judge in Massachusetts, states (1) that for the purpose of receiving federal benefits marriage is defined as a male/female union, and (2) that the full faith and credit clause of the Constitution does not require a state that has maintained traditional marriage laws to recognize same-sex marriages performed out of state.

But again, under federal law, there is nothing standing in the way of all 50 states legalizing same sex marriage.  Nothing, that is, other than popular opinion.

It is one thing for an ideological advocate of same-sex marriage to speak of DOMA as a federal ban on gay marriage that interferes with state rights.  It appears that the judge in this case adopted this specious reasoning.  But it is another entirely for a straight news organization to report the existence of this imaginary "ban" as fact.